Witnessing of Wills in the present climate

As you say, Peter, interesting times.

Chide you Peter? Heaven forbid I should even dream of doing such a thing, gentle or otherwise !

I would suggest that the delivery was important as the testatrix appropriated the will as being the will validly witnessed in her presence, stretched to “line of sight”. Had she not so done, would the Lord Chancellor have so favoured the Wills validity?

I would say yes but I would wouldn’t I; I’m afraid we will never know.

Malcolm Finney

what about a holographic will if circumstances suit, at least in this way it would be valid and nobody needs to be present, instructions could be given over the phone to ensure it is completed correctly.

Brendan Noone
Noone & Associates

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We think if the testator can see the proxy and witnesses (the proxy can be one of the witnesses) either through a window, or possibly via electronic means, they can acknowledge the will and direct it to be signed on their behalf by the proxy, then see the witnesses sign it in each other’s presence.

A possible attestation clause could be: “The testator having read the will, but temporarily unable to sign the Will because of being isolated during a viral pandemic, the same was signed by [proxy] with the name of the testator within sight of the testator and by his direction and in sight of the witnesses, and then signed by the witnesses in sight of each other”.

Iain Cameron
Acer Legal

A fascinating and challenging question in this current period. I am in Italy and been in “lockdown” for two weeks during which I have witnessed a signature on a statutory declaration and certified identity for several clients by Whatsapp videocall then using courier and DHL to exchange documents within Rome and from Italy to UK. That has been helpful in keeping us all safe and still allowing clients to exchange contracts or get an emergency passport. If the window solution has been allowed as far back as 1781 in Cason v Dade, witnessing a will should absolutely be permitted by video as well, even though the witnesses sign the copy later.

The question is whether the courts start to allow this first or the Wills Act s. 9 is amended. “In the presence of the testator” should ideally be extended to mean even by video link in different parts of the world (and witnessing recorded by video with some acceptable means of proving time and date of course).

Charlotte Oliver
Oliver & Partners

This is the latest from STEP:https://www.step.org/news/making-will-time-coronavirus

Simon Northcott

Monday, 23
March, 2020

The STEP Trusts Discussion Forum has been examining the issues facing practitioners in the preparation of wills during the coronavirus epidemic.

Practitioners have to be mindful of official advice on self-isolation and social distancing, which are particularly important for elderly or ill persons. Moreover, there are reports of a large jump in the number of people contacting lawyers to draft wills and execute powers of attorney in the last month. Ian Bond TEP, chair of the Law Society’s wills and equity committee, stated to the Daily Telegraph that levels of requests are up 30 per cent.

Delaying drafting the will is clearly a risky option for testators who are already ill. Clients should thus be given the option of meeting via telephone or videoconferencing in order to draft the will, said a STEP recommendation issued last week.

This, however, can present difficulties where the practitioner needs to assess and record mental capacity. It is also likely to be problematic to obtain a doctor’s report confirming capacity at the moment, given the pressures on the National Health Service.

Some solicitors are adopting the practice of signing off at the direction of a testator after going through the document with them through a window. But some advice suggests that the virus could survive on paper for up to 12 hours, so that it could be transferred from person to person just by handling the draft will.

Attestation by two witnesses present at the same time, while maintaining personal separation, is a particular difficulty, especially if the testator is in isolation and unable to ask independent witnesses into the room. However, witnessing a will from the next room or through a window might be challenged as not being formally in the testator’s presence, although some very old case law (Casson v Dade 1781) suggest it may be sufficient to have two witnesses who are in line of sight though not in the same room.

‘Practitioners are in a difficult position as it may not be possible to comply with the government’s guidance to reduce social contact while also arranging for wills to be validly signed’, says STEP. Its recommendation is that the government’s guidance should be every practitioner’s starting point. ‘In practice this may mean sending wills to clients and asking them to make arrangements for suitable witnesses to visit them while maintaining distance so far as possible. However, it will be for each practitioner to make a decision on the merits of the particular case and the relative risks to both the client and the practitioner.’

A partial solution may lie in technologies such as Skype, WhatsApp, Facetime or email, although there is not yet any official confirmation that e-signatures or video-witnessing will be accepted by the authorities. The government recently officially accepted the Law Commission’s opinion that electronic signatures on contracts and many deeds are already legally valid in England and Wales without the need for formal primary legislation, but wills remain an exception to this.

I am not aware of anything having been issued by the Law Society, and the SRA seem particularly silent at the moment. Following the advice of STEP would I am sure be a good defence if things go wrong, more so perhaps then even the Law Society in view of their standing.


I received the following from The Law Society:

" Dear Mr Mumford,

Many thanks for your email. As you can imagine, we are currently receiving a high volume of correspondence regarding the COVID-19 pandemic and its implications for members, the profession and the public. We have had many enquiries concerning the means by which documents such as wills, powers of attorney, statutory declarations, oaths etc may be witnessed/administered at this time of social distancing and in many cases self isolation…

The latest resources and support from the Law Society can be found on our website, and this is being continually updated.

I have passed your message on to our COVID-19 group, who are co-ordinating the Law Society’s response to the pandemic for our members. Please be assured that your query will be considered fully. Any response to your query will be published through the resources and support available on the Law Society website.

In the absence of specific government led guidance on the issue, there are practical steps which need to be considered on a case to case basis. For example, sending engrossments by post, giving instructions over skype, calling on neighbours or friends to be witnesses.

If you judge that a physical visit is imperative, our guidance states that you choose personnel who are not a risk to the client and who are not at high risk themselves. Both the client and the employee will need to agree to the meeting despite any risk. If it is possible to attend the client for signing and witnessing this should be at a suitable distance where the line of sight can be maintained and you should note there is case law that indicates that it is possible to witness documents through a window. Legislation however has not caught up with technology and we cannot advise the use of skype /facetime as a means of witnessing of documents.

If you have any further questions or comments, please do not hesitate to contact me.

Yours sincerely,

Membership Services

While every effort is made to ensure the accuracy of the information given by email, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given."

I and a handful of colleagues emailed our MPs to raise the issue. One MP forwarded the question to the MoJ and we are waiting on a response.

Will Mumford
Healys LLP

The STEP guidance (Monday) to send documents to clients with instructions and ask them to find witnesses is no longer appropriate with the prohibition of gatherings of two people from different households…

We are considering using electronic means (recorded video conference) to allow the testator to direct us to sign in the presence of two witnesses and an attestation clause that accurately reflects the reasons and circumstances.

To avoid risk we will provide replacement documents with a standard attestation clause and supervise the signing and witnessing once the current restrictions on movement are lifted.

Donna Hames
Carisma Wills Limited

There is a simple solution here in my view. It involves extending the privileged Wills jurisdiction during the current crisis but with slight modifications, perhaps to require written, audio or video evidence of the Will rather than pure verbal evidence.

I have raised this with the LS and my local MP.

Liam O’Neill
AWB Charlesworth Solicitors

s.9 (c ) and (d) (ii) do not help without presence i.e. “line of sight”. It would need an extraordinary judicial extension.

Peter Harris

The revocation of a will by destruction at s.20 by tearing up, burning etc. by another person under the testator’s direction requires the testator to be present as well. Assuming it to be the same test as for its validity, how would that function digitally and would that impact on the current discussion?

Peter Harris

I have a client in hospital on a general ward with the virus. He really wants to update his Will, he has been emailing me and his executors and none of us have any qualms re capacity and all signs thankfully are he will recover but nothing is a given and although I have managed to get the updated Will to him, there is no one to witness it for obvious reasons. I have read the above with interest but it does not provide a solution in this instance. The fact he can’t sign the new Will is causing him some distress. Has any one come up with a solution since the last post? Many thanks

Belinda Hornsby Cox
Belmont & Lowe

The SRA has opined: https://www.sra.org.uk/sra/news/coronavirus-qa/

You will be struck off if you do and struck off if you don’t.

As my father said many times, it would make a cat laugh

Jack harper

Could he not ask two other patients to witness it?

But don’t overlook your responsibilities under H & S legislation. Is it sufficient to give the document an antiseptic wipe if it is returned to the office for storage? I am told that (counterintuitively) the virus doesn’t survive for long on absorbent surfaces like paper or cloth, but can last for up to 72 hours on non-absorbent ones - plastic or other glossy covers.

Tim Gibbons

What about if the clients were to sign in their garden and then pass the Wills to their neighbours over the fence, also in their garden. Gloves worn by all parties.

Deborah Wise

Meanwhile, the Law Society of Scotland has issued advice indicating that witnessing by video link is acceptable. I am not sure on what legal basis that is stated. The Requirements of Writing (Scotland) Act states that it is necessary that a witness “sees” the granter subscribe, or the granter acknowledges the subscription.

In any case, it is also competent to execute a will under Scots Law without any witness, and this is recommended as a stopgap measure. It is clearly not best practice, and in the event of death requires some additional procedure in support of the Will to procure Confirmation.

Dale Ross
Blackadders LLP

Depends on how high the fence is! But sounds good if they can see over and it isn’t raining :umbrella:

Simon Northcott

I am about to witness a will for a neighbour (prepared by me) who luckily is well and so am I and 1 other. The execution is to take place as follows:

I have a telephone meeting with the client over the phone with both of us having a copy of the Will in front of us. Once approved I will send the Will to the client by email to print and tie together (staple). Then at an agreed time we will meet by his front drive which is luckily big. We will be able to be in line of sight and 2 meters apart. I have let the neighbour to set their own makeshift table(stool/chair) The testator will sign and leave the page open for us to complete and then each witness will using their own pen and keeping to minimal contact on the paper maintaining a 2 meter distance will complete the witness details and then the client will keep the Will until such time we can collect the original and we have offered to re-execute with our usual engrossed copy at a later date if they wish.

I think at present it is really hard and generally we have sent engrossed copies to clients with detailed instructions to execute. There is always a danger to either the client or your witness let alone yourself. The virus, bear in mind can spread through touch. The above outlined is the only way i can see where I can ensure proper execution and minimal contact between parties. Hospital situations sadly I cannot suggest an execution other than if they are in a ward with other patients all with the virus touch I guess will not have the same consequence. I think otherwise the alternative would be through a window with a colleague maintaining a 2 meter distance between all parties (apart from the client who is on the other side of the window). You sign under their direction in their presence and then sign as a witness and your colleague signs using their own pen, however, contact takes place between you and your colleague and you would need to have a willing colleague, which is hard now that we are all working from home.

Good luck to all and be safe.

Monika Patel
Stapletons Solicitors

Very good point, Wlls Act 1936 states:

1 General rule as to formal validity.

A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.

If the testator’s nationality permits it, e.g. France, Germany etc. no need for witnesses, but the problem is inserting the necessary statutory mentions for an English estate in handwriting. Best draft it out and hope that the testator is able to write it out in such circumstances. References to Step standard provisions might assist, but I am advised by friends in 5 Stone Buildings that the Testator needs to acknowledge and to have understood these in a witnessed English style will. The issue is whether that is necessary in a olographe will. The point with those is that they are an absolute statement of testamentary intention, within a civil law jurisdiction with direct seisin and codified administrative provisions. In my view, if a olographe will incorporated the Step standard provisions that might function because of the settlor’s handwritten direction and intention, whether he/she had read these or not. Satisfying the formal requirements of s.1 Wills Act 1963 is one thing, creating a handwritten will which actually functions in the English environment is entirely another.

Perhaps best to stick to something of a simple nature such as to wife/partner for life and then to issue absolutely could work and then possibly vary the will after the death to ensure everyone is OK with it.

It could also work for a domiciled or habitually resident Channel Islander. If the “mark” is on his British Passport then that might suffice to introduce a Jersey olographe over movables and immovables outside the Jersey jurisdiction. There is no such thing as “United Kingdom” nationality

Peter Harris

If a willmaker has sufficient links to another jurisdiction, the potential for a will to be validated pursuant to the laws of that jurisdiction could be an option.

For example, in New Zealand, it is possible for apply for an order that a “document” is valid as the last will of the deceased pursuant to the Wills Act 2007. Such a “document” can be a text message, video or any form of electronic document; there is no obligation for it to be on paper. Notes taken by a solicitor have been successfully ordered to be a will. If such an order isgranted, an application can then be made for New Zealand probate of the validated will.

Lee Harris
Foley Hughes, New Zealand

It may help that one of the attesting witnesses can double as the person who signs at the direction of the testator (see Encyclopaedia of Forms & Precedents, Vol 42(1), 699 (footnote 4)). So two people outside the window should suffice.

Ben Leach
Molesworths Bright Clegg